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Lala Manmohan Das Vs. Pt. Krishna Kant Malaviya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All41
AppellantLala Manmohan Das
RespondentPt. Krishna Kant Malaviya
Excerpt:
.....an agent or pleader though engaged only for the purpose of making an application. it follows that inasmuch as the plaintiff's pleader did appear on that occasion and made an application for an adjournment which was disallowed, the plaintiff cannot in view of the explanation, be deemed to have failed to appear on that occasion. had the plaintiff in the present case appealed from the decree and shown good cause to the appellate court, the decree might just as well have been set aside in this case also. 4. it may even now be possible for the plaintiff to appeal and ask for extension of time, if he can satisfy the appellate court that there has been good cause for not filing the appeal owing to some wrong advice under which he was prosecuting another proceeding bona fide with the same..........which he was prosecuting another proceeding bona fide with the same object in view. it is unnecessary for us to express any opinion on this point. we think that the court below has acted without jurisdiction in setting aside the previous decree which was not an order dismissing the suit for default of appearance, and has also acted with material irregularity. the application is allowed, and the order dated 14th march 1931, is set aside. but in the circumstances of the case, we direct that the parties should bear their own costs in both the courts.
Judgment:

Sulaiman, C.J.

1. This is a defendant's application in revision from an order of the Subordinate Judge restoring suit which has been previously dismissed. A preliminary objection is taken that no case has been decided and that therefore no revision lies; if the contention of the applicant is correct, the suit had been finally disposed of, the Court had become a functus officio and a fresh proceeding was started by the plaintiff for the setting aside of the previous decree. This separate proceeding has now terminated in favour of the plaintiff and the original suit has been restored. In view of the pronouncement of two Full Benches of this Court in Ram Sarup v. Gaya Prasad : AIR1925All610 and Radha Mohan v. Abbas Ali : AIR1931All294 , it must be held that a case has been decided and that a revision would lie if the conditions required by Section 115, Civil P.C., are fulfilled. It appears that the suit had been pending for sometime and had been adjourned on several occasions. The last date fixed was 5th. March 1930. On that date the plaintiff's pleader appeared and presented an application for an adjournment of the suit on the ground that the plaintiff was absent at Gorakhpur in connection with some meeting. The application for adjournment was pressed on behalf of the plaintiff, but the Court declined to adjourn the case. After this the plaintiff's pleader was called upon to proceed with the case, but he stated that he had no further instructions from his client. The defendants were all present and were represented by their pleader. The Court accordingly ordered: 'The suit is hereby dismissed for want of prosecution.'

2. The plaintiff did not appeal from this but presented an application for restoration of the case on the ground that there was sufficient cause for his not appearing personally. This application was opposed by the defendants, but has been granted by the Court below on the supposition that there had been. a default of appearance on the previous occasion and a disposal under Order 9, Rule 8, and that therefore the plaintiff is entitled to have the suit restored if sufficient cause is shown. There is no doubt that Order 9, Rule 8, can apply only where the defendant appears and the plaintiff does not appear when the suit is called on for hearing. In the case of an adjourned hearing there is a special provision made by Court in the form of an explanation added to Order 17, Rule 2, under which no party shall be deemed to have failed to appear if he is either present or is represented in Court by an agent or pleader though engaged only for the purpose of making an application. It follows that inasmuch as the plaintiff's pleader did appear on that occasion and made an application for an adjournment which was disallowed, the plaintiff cannot in view of the explanation, be deemed to have failed to appear on that occasion. There was accordingly no default of appearance on behalf of the plaintiff and the learned Subordinate judge did not in his order say that the suit was being dismissed for default of appearance. There was no evidence before the Court and the suit was dismissed for want of prosecution.

3. In our opinion the case fell under, Order 17, Rule 3, and not under Order 17, Rule 2. The order, therefore amounted' to a decree dismissing the suit for want of evidence on the merits and not one dismissing it for default of appearance. The plaintiff's remedy was either by way of review or an appeal to the higher Court. Instead of appealing from the decree, he applied for the setting aside of the decree and for the restoration of the suit, treating the dismissal as one for default of appearance. This remedy was obviously misconceived. It is urged on behalf of the plaintiff that there is an inherent jurisdiction in a Court to set aside a decree and restore a suit even where it does not fall under Order 9. For this reliance is placed on the case of Lalta Prasad v. Ram Karan [1912] 34 All 426. But in that case there was an appeal from the decree passed in the case and it was the appellate Court which set aside the decree. Had the plaintiff in the present case appealed from the decree and shown good cause to the appellate court, the decree might just as well have been set aside in this case also.

4. It may even now be possible for the plaintiff to appeal and ask for extension of time, if he can satisfy the appellate court that there has been good cause for not filing the appeal owing to some wrong advice under which he was prosecuting another proceeding bona fide with the same object in view. It is unnecessary for us to express any opinion on this point. We think that the court below has acted without jurisdiction in setting aside the previous decree which was not an order dismissing the suit for default of appearance, and has also acted with material irregularity. The application is allowed, and the order dated 14th March 1931, is set aside. But in the circumstances of the case, we direct that the parties should bear their own costs in both the Courts.


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